NEW YORK – The American Civil Liberties Union was in court on Tuesday, February 9 arguing that its lawsuit should go forward against Boeing subsidiary Jeppesen DataPlan, Inc. for the company’s role in the CIA’s extraordinary rendition program. The Bush administration intervened in the case, improperly asserting the “state secrets” privilege and claiming the case would undermine national security interests. The lawsuit was dismissed in February 2008, and the ACLU is appealing that ruling.

“Under the Bush administration, the U.S. government used false claims of national security to dodge judicial scrutiny of extraordinary rendition,” said Ben Wizner, an ACLU staff attorney who will argue the case for the plaintiffs. “This case presents the first test of the Obama administration’s dedication to transparency and willingness to act on its condemnation of torture and rendition. The administration should unequivocally reject the Bush administration's abuse of the state secrets privilege and permit this case to go forward.”

Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Much of the evidence needed to try the case is already available to the public.

“The extraordinary rendition program is well known throughout the world. The only place it's not being discussed is where it most cries out for examination – in a U.S. court of law,” said Steven Watt, a staff attorney with the ACLU Human Rights Program. “Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court.”

It has been 50 years since the United States Supreme Court last reviewed the use of the “state secrets” privilege. In recent years, the government has asserted this claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public not only about the rendition program, but also about illegal wiretapping, torture and other breaches of U.S. and international law. In 2007, the Supreme Court refused to review the “state secrets” privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA “black site” prison in Afghanistan.

Last Wednesday, Britain's High Court of Justice ruled evidence in the U.K. civil case of Binyam Mohamed, one of the plaintiffs in the Jeppesen case, must remain secret because of U.S. threats to cut off intelligence sharing.

The Jeppesen lawsuit was brought on behalf of Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah and Bisher Al-Rawi.

In addition to Wizner and Watt, attorneys in the lawsuit are Steven R. Shapiro and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.

More information about the case, including legal documents, is available online.